1.Alfred Wambua Nthenya, the appellant hereof filed a case before Thika Chief Magistrate’s Court against the respondents in his claim for negligence on the respondent’s part which he pleaded it led to a motor vehicle accident whereby he was injured. He claimed for special and general damages.
2.The trial proceeded with the appellant adducing evidence. The trial court by its judgment of 2nd April, 2020 determined that the liability for the accident was 50:50 as against the appellant and the respondents. The trial court awarded special damages as pleaded and proved and general damages for Kshs.150,000. The appellant has appealed in this appeal against the finding on liability and the award of general damages.
3.This is the first appellate court. The duty of this Court is to revisit the case that was before the trial court afresh, analyze it, evaluate it and come to its own independent conclusion but bearing in mind and giving allowance that the trial court had the advantage of seeing and hearing the witnesses: See the case Selle & Another vs Associated Motor Boat Co. Ltd  EA 123.
4.From the outset, I wish to state that the respondent did not file submission in this appeal, only the appellant filed his submissions.
5.There are two issues for determination, that is:-a.Did the trial court err in its finding on liability?b.Did the trial court err in its award in general damages?
6.The appellant gave evidence touching on liability as follows:
7.That is the totality of the evidence that the trial court obtain to help it determine liability. The trial court by its judgment well appreciate that the respondents, having not called any evidence in support of their defence that defence remained unsubstantiated. The trial court went further to state that the appellant had to prove on a balance of probability that the respondent was negligent, notwithstanding the failure of the respondents to prove their defence by calling evidence. The trial court made the following holding.
8.The Canadian case Clements vs Clements, 2012 SCC 32 (CanLII) (2012) 2 SCR 181 discuss the need to prove duty of care in negligence cases thus:
9.Bearing in mind the above persuasive decision I find there are certain pointers on liability in the appellant’s evidence, which I am of the humble view the trial court did not consider. The appellant stated that he crossed at a place where pedestrian cross the road. The respondent’s vehicle appeared suddenly on the road and hit him. It was during the day and visibility was good. Bearing that evidence in mind and considering the respondent did not provide evidence in contradiction, there is, therein, evidence of the respondent bearing a greater responsibility to ensure safety of other road users and to ensure to avoid the accident. I am in this regard guided by the case Equator Distrubutors vs. Joel Muriu & 3 others (2018) eKLR as where it was stated:
10.I am further guided by the case Savannah Hardware V. EOO (Suing as Representative of SO (deceased) (2019) eKLR where the court held:-
11.The latter case involved a child who was fatally hit by motor vehicle but that notwithstanding the principle that drivers driving on public road have a higher duty of care would also apply to this case.
12.Against the above background, I find that the holding of the trial court on liability needs to be interfered with. The appellant was crossing at a place ordinarily used by other pedestrians. The respondent vehicle appeared suddenly and hit him. The respondent was unable to bring the vehicles to halt leading to the accident. In my view in the absence of contrary evidence, I find the appellant did not at all contribute to the accident. I find the respondent on a balance of probability was proved to have been 100% responsible for the accident which led to the appellant’s injury.
13.In respect to Issue (a), I find it in the positive that the trial court erred to apportion liability on 50:50% basis. The respondents were 100% liable for the accident.
14.Issue (b) requires this Court to interrogate the trial court’s award on general damages. The doctor’s report revealed that the appellant sustained multiple facial bones fractured and degloving injury to the right thigh. The trial court having considered the authorities relied upon by the parties awarded Kshs.150,000 in general damages. The principles upon which an appellate court can disturb the trial court’s assessment on damages were discussed in the Court of Appeal decision of KEMFRO AFRICA LIMITED T/A MERU EXPRESS SERVICES GATHOGO KNINI VS. AM LUBIA AND LIVE LUBIA (1982-88) IKAR as follows:
15.In determining the general damage award, courts are required to consider comparable awards. This was the holding in the case Stanley Maore vs Geoffrey Menda (2004) eKLR thus:-
16.The appellant relied on the case S.M. V. Mahesu Kerai & Manoj A Patel (2009) eKLR. In that case, the injuries were:
17.In that case, the court awarded Kshs.1million in general damages.
18.Appellant further relied on the case Panniack Investments Limited vs Davidson Mwanzia Kamuta (2018) KLR where the claim’s injuries were:
19.The court in that case awarded general damages of Kshs.800,000.
20.The appellant also relied on the case of Kenya Wildlife Services vs Godfrey Kirimi Miti 2018) eKLR where the injuries were noted to be:i.Left zygomatic bone fracture.ii.Left ethmoidal bone fracture and maxillary fracture.iii.Nasal septum fracture.iv.Lower orbital floor fracture.v.Loss of teeth, 6 on upper; 3 on lower jaw.vi.Distal left radius fracture.
21.In that case, the court made an award for Kshs.2million in general damages.
22.These cases that the appellant has placed reliance on were not brought to the attention of the trial court. In my view, had the appellant brought them to the attention of the trial court, the award of the trial court would have been different.
23.Having stated so, I do find a basis to interfere with the trial court’s award in general damages. The appropriate damages for the injuries the appellant sustained in my view is Khss.900,000.
24.On issue (b) I do find as discussed above, the trial court erred in its assessment of general damages.
25.In the end, the appellant’s appeal hereby succeeds and the trial court’s judgment is hereby set aside and is substituted judgment:a.That the respondents were 100% liable for the accident.b.The appellant is awarded Kshs.900,000 in general damages.c.The award of special damages of Kshs.45,675 is hereby upheld.d.The appellant is awarded costs of the trial court a prayed in the plaint.e.The appellant is awarded costs of the appeal assessed at Kshs.120,000.